NEW YORK, Feb 27 ― Prosecutors have long been hesitant to take on cases of acquaintance rape, as they were convinced that jurors would have a hard time believing the victims ― and drawing fine distinctions about consent.
But the conviction of disgraced movie mogul Harvey Weinstein on charges of rape and sexual assault should move the needle on such cases, and open the door to more prosecutions, legal experts told AFP.
“We are in rapidly changing times,” said Deborah Tuerkheimer, a professor of law at Northwestern University and an expert on sexual violence cases.
“It matters that the #MeToo movement has been accelerating the last couple of years. The cultural change we are seeing is making a difference in the courts.”
For Susan Estrich, an attorney who teaches at the University of Southern California, the fact that Manhattan district attorney Cyrus Vance even decided to prosecute Weinstein based on allegations made by two women who maintained relationships with him after their alleged assaults shows that the US legal system has reached a new phase.
“A case like this simply would not have been considered rape 10, 20 years ago,” Estrich told AFP.
Even Vance was not always ready to try such cases.
In 2011, he gave up on prosecuting former International Monetary Fund managing director Dominique Strauss-Kahn, who had been accused of sexually assaulting a hotel maid in New York.
That shift speaks volumes about cultural changes in recent years.
‘Nuts and sluts’ defence
Estrich, who was raped in the 1970s, has worked for years to raise awareness about acquaintance rape cases.
She coined the phrase “nuts and sluts” to describe how some men defended themselves against claims of sexual misconduct. Women make up claims because they are “nuts” or “sluts,” went the logic.
Estrich specifically used it to describe attacks on Anita Hill, who had accused Clarence Thomas, then a candidate to serve on the US Supreme Court, of harassment.
“In this country and around the world, a woman forced to have sex by a man she knew was rarely considered as having been raped,” Estrich said.
Now, “you see women around the globe stepping up and saying we don’t have to put up with this anymore ― this is not sex, it’s coerced.”
For more than 30 years, American courts have tried to make it less painful for victims of sexual violence to file complaints.
Police departments created specialized sex crimes units and specific prosecutors took those cases on, Estrich explained.
In the US, where local prosecutors are elected and often evaluated on their conviction rate, victims were often submitted to gruelling interrogations, especially on their sexual history, before their cases were accepted.
In short, prosecutors did not want to take unwinnable cases.
Courts complicated matters by not allowing attorneys to introduce any past assaults committed by the defendant into evidence.
William Kennedy Smith, a nephew of slain president John F Kennedy, was acquitted of rape in 1991 after a trial that erupted into a media circus.
Observers attribute his exoneration to the judge’s refusal to allow into evidence claims by three other women that he had assaulted them.
The retrial of comedian Bill Cosby in 2018 was perhaps the first perceptible shift ― what Kristen Gibbons Feden, one of the lawyers who prosecuted the actor, called the start of a “culture shift.”
The conviction of Cosby ― who was found guilty on three counts of aggravated indecent assault for drugging and sexually assaulting a woman he knew ― marked the end of a tortuous legal saga.
Local prosecutors in Pennsylvania initially abandoned efforts to try Cosby over the 2004 assault, and then eventually revived the case in 2015.
A first trial ended in a mistrial. Only in the second trial in April 2018 were five other accusers allowed to testify against Cosby, and he was convicted.
“There were Cosbys and Weinsteins, R. Kellys and Epsteins long before Cosby was convicted. They were just institutionally protected,” Feden said.
Knock-on effects of #MeToo
The #MeToo movement against sexual harassment, which began in late 2017 in response to Weinstein’s case, “gave the police and prosecutors a will to investigate those crimes, the bravery to bring forth those complex trials,” Feden said.
The movement also “provided education to the jury to fully understand and discount those great myths ― myths that were historically used to discredit victims,” she added.
For Feden, these effects are already being felt in numerous cases, even if they are not headline-makers.
The Weinstein trial shone a light on how these lessons are being learned.
Prosecutors called forensic psychiatrist Barbara Ziv to testify. She explained that rape victims often knew their assailants, stayed in contact with them and never told anyone about the attacks.
Her testimony highlighted the often complex relationships victims can have with the accused ― and ultimately showed that jurors could understand those relationships.
Nevertheless, Weinstein’s conviction does not mean that acquaintance rapes are now easier to prosecute, according to Tuerkheimer.
She said several factors helped prosecutors in his case, including the number of women ready to testify against him ― six eventually did.
Also, those women were all white and well-off ― witnesses that jurors are apparently more ready to believe than poorer, minority victims, Tuerkheimer said.
A definitive shift is not yet certain, according to Estrich, but she expects to see the number of rape complaints go up, and also to see women “stand together and support each other.” ― AFP